Convicted sex offenders Lester Ray Nichols and Robert Dean Lunsford share a similar, sordid past.
But it’s where the stories of the two men diverge that has drawn the scrutiny of the U.S. Supreme Court.
At issue is whether registered sex offenders can be prosecuted under federal law if they emigrate to another country without notifying officials in the state they are leaving.
Nichols, who lived in Leavenworth, and Lunsford, who lived in Clay County, packed up and moved to the Philippines several years ago.
But because neither told local authorities when they moved, authorities had them arrested and extradited back to the United States.
Both entered “conditional” guilty pleas in federal court to violating the Sex Offender Registration and Notification Act (SORNA), the federal law that requires convicted sex offenders to register with local authorities. It also requires them to notify authorities whenever they move.
The conditional pleas were made so each man could ask appeals courts to consider whether the registration law applied to them.
The federal appeals court that covers Missouri threw out Lunsford’s case, but a different appeals court that handles Kansas cases ruled against Nichols.
Nichols appealed, and earlier this month the nation’s highest court agreed to hear his case.
“It is impossible to implement a uniform sex offender registry when jurisdictions have different rules for registration,” his attorneys wrote in their petition to the Supreme Court. “There is an entrenched conflict on whether a sex offender who moves to a foreign country must register in the jurisdiction in which he formerly resided.”
It’s the kind of conflict between appeals courts that the U.S. Supreme Court agrees to hear so the question can be clarified, said one of Nichols’ attorneys, Daniel Hansmeier, appellate chief for the federal public defender’s office in Kansas.
Nichols, 74, now lives in Wichita, where he moved last year after serving his 10-month prison sentence for failing to update his sex offender registration.
According to federal court documents, he was convicted in 2003 of traveling across state lines with the intent to engage in sex with a minor. After his release from prison in 2011 he registered with authorities in Leavenworth County.
He updated his registration as required until November 2012, when he “abandoned” his residence in Leavenworth, flew to the Philippines and established a new residence in Manila.
“At no time did the defendant notify any law enforcement authority of his intent to change residence and travel to Manila,” according to his federal court plea agreement.
Lunsford, 56, who now lives in Kansas City, was required to register as a sex offender for two sexual abuse convictions.
He first registered in 1998 and last was registered in Clay County, but in May 2011 he flew to the Philippines without notifying local officials “of his intention to travel or change of residence,” his plea agreement shows.
In Lunsford’s case, the 8th U.S. Circuit Court of Appeals based in St. Louis found that the law’s definition of “jurisdiction” for registration purposes does not include foreign countries.
“So Lunsford was not required to register in the Philippines,” the court ruled.
And because he no longer lived in Missouri, he was no longer required to update his registry there, the court reasoned.
Nichols’ appeal was handled by the 10th U.S. Circuit Court of Appeals in Denver.
In ruling on his appeal, it cited a similar case it decided in 2011 in which it found an offender who leaves the country is still bound by SORNA.
The court said it was bound by that prior decision.
“By boarding the plane to the Philippines, Mr. Nichols abandoned his residence in Kansas,” according to the 10th Circuit opinion. “This change in residence triggered a registry obligation in Kansas, which Mr. Nichols did not fulfill.”
In seeking the Supreme Court’s review, Nichols’ lawyers cited the conflicting opinions.
They pointed out that the law required an offender to register where he “resides,” not where he “resided.”
They also asked the Supreme Court to consider a broader constitutional issue over whether the attorney general or Congress has the discretion to decide who can be prosecuted under the law.
The court declined to take the constitutional question but agreed to decide the single question involving a move out of the country.
“It’s a really straightforward case,” Hansmeier said.
The issue does not involve registered sex offenders who travel out of the country on vacation or for business. A 2010 Government Accountability Office report said that at least 4,500 U.S. passports went to registered sex offenders in fiscal year 2008.
The Department of Justice has established the office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART) to coordinate efforts to track convicted sex offenders who travel from and into the United States.
Under guidelines set up by the Justice Department, offenders are supposed to notify officials 21 days before they intend to travel overseas. American officials work through Interpol to notify the countries involved, according to the guidelines.
According to a 2014 SMART report, 18 other countries have some form of registry for sex offenders, and U.S. officials work with those countries to obtain information when registered offenders come into the United States.